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Guinness v Police

Guinness v Police

Case [2015] NZHC 883 30 April 2015

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2015-463-26 [2015] NZHC 883

BETWEEN
DIONNE MICHELLE SIDRINA

GUINNESS Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 April 2015

Appearances:

S Whitehead for the Appellant
C Harold for the Respondent

Judgment:

30 April 2015

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:
Mr S Whitehead, Public Defence Service, Tauranga
Ms C Harold, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

GUINNESS v POLICE [2015] NZHC 883 [30 April 2015]

[1] The appellant, Dionne Guinness, appeals against a sentence that she pay

$300,000 reparation and that it be paid within 60 days of the date of the sentence. This was for offences of obtaining by deception, altering documents with intent to deceive, and theft by a person in a special relationship. She was also sentenced to 2 years 6 months imprisonment. There is no appeal against the sentence of imprisonment.

[2] In the District Court, Judge Harding imposed the reparation sentence even though the appellant, as he recorded, appeared to be “hopelessly insolvent”. The sentence was imposed in an expectation that this would be likely to force her into bankruptcy and, as a result of this, the two companies who were the victims could prove in the bankruptcy.

[3] The appellant submits that the Judge’s decision was founded on a material error of law in respect of provable debts. The law is that an order or sentence of reparation is not a provable debt under s 232 of the Insolvency Act 2006. The appellant submits further, and as a result, that the sentence is contrary to the Sentencing Act reparation provisions – the reparation order would cause undue hardship to the appellant and is manifestly excessive. The respondent, through Ms Harold as counsel, agrees with the main thrust of the submissions.

[4] As I have already indicated in discussions with counsel, I also agree with the primary points made on appeal. It is nevertheless necessary adequately to explain why for at least two reasons. One is that an appeal cannot be granted simply because counsel are in agreement. The appellate court is bound to assess the matter on its merits. The second reason is that the effective owner of the two businesses, Mr Black, is in Court and he is entitled to a full explanation as to why the order made in the District Court is not sustainable.

The offences

[5] I will briefly outline the offending. It is a very brief outline. The appellant was employed by two related companies. Her duties included financial matters such as banking and payment of bills and receipt of payments into the companies. In August 2014 the companies discovered discrepancies. It was established that the

appellant had, by various means, stolen over $350,000 from the companies over an extended period of time. There is no doubt that this was serious offending, and a gross breach of trust given the position the appellant had with these two companies.

[6] The appellant pleaded guilty at an early stage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Guinness v Police

Details

AGLC: Guinness v Police [2015] NZHC 883
Case: [2015] NZHC 883
Decision Date: 30 April 2015

CaseChat Overview and Summary

Dionne Michelle Sidrina Guinness appeals against a reparation sentence that she pay $300,000 within 60 days of the sentence, imposed for offences of obtaining by deception, altering documents with intent to deceive, and theft by a person in a special relationship. The appeal is against the reparation order only; there is no appeal against the sentence of imprisonment. The legal issues the court was required to decide were whether the reparation order was a provable debt under the Insolvency Act 2006, and whether the reparation order was contrary to the Sentencing Act 2002 provisions.

The High Court found that the reparation order was not a provable debt under the Insolvency Act 2006, and that the reparation order was contrary to the Sentencing Act 2002 provisions as it would cause undue hardship to the appellant and was manifestly excessive. The court found that the rationale for the order was an error of law, as reparation sentences are not debts provable in bankruptcy. The court also found that the order would cause undue hardship to the appellant, as it was impossible to comply with, and that it was contrary to the Sentencing Act 2002 provisions and decisions of the Court of Appeal and High Court.

The court quashed the reparation order and remitted the matter back to the District Court for reassessment of the question as to whether there should be a reparation sentence and, if so, the amount of reparation and the terms upon which it should be paid. The court directed a further reparation report be provided, with full enquiries to establish the value of any assets owned by the appellant together with the amount of her debts, and that the appellant provide an updated statement of financial capacity.

Orders